US v. Rollins, Crim. No. 88-10033.

• Citation: 706 F. Supp. 742
• Decision Date: 10 February 1989
• Docket Number: Crim. No. 88-10033.
• Parties: UNITED STATES of America v. Ronald ROLLINS, Defendant.
• Court: U.S. District Court — District of Idaho

706 F. Supp. 742

UNITED STATES of America v. Ronald ROLLINS, Defendant.

Crim. No. 88-10033.

United States District Court, D. Idaho.

February 10, 1989.

Maurice O. Ellsworth, U.S. Atty., George Breitsameter, Asst. U.S. Atty., D. Idaho, Boise, Idaho, for U.S.

R. Brad Masingill, Weiser, Idaho, for Rollins.

MEMORANDUM DECISION

CALLISTER, District Judge.

The Court has before it an appeal from a criminal conviction imposed by the United States Magistrate. The Court heard oral argument on February 6, 1989, and the matter is now ready to be resolved. While the Magistrate's factual findings must be upheld unless clearly erroneous, his application of those facts to the law is reviewed de novo. See United States v. Feldman, 788 F.2d 544 (9th Cir.1966), cert. denied 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

This case began on May 21, 1988, when the defendant, Ronald Rollins, applied a mixture of registered pesticides (Furadan and Di-Syston) to approximately fifty acres of seed alfalfa growing on his farm at West Lake Island in the Snake River between Oregon and Idaho. Thereafter, a flock of geese alighted on the field, ate the alfalfa, and died from ingestion of the pesticides. Rollins was charged with a violation of Title 16, United States Code, §§ 703 and 707, the Migratory Bird Treaty Act (MBTA) and also with violation of Title 7, United States Code, § 136j(a)(2)(G), the Federal Insecticide, Fungicide, and Rodenticide Act. This latter charge was dismissed by the Magistrate in response to pretrial motions, and the case went to trial on October 11-12, 1988. The Magistrate then issued a detailed and well-written memorandum decision on October 19, 1988, finding the defendant guilty of violating the MBTA. In that decision, the Magistrate identified the "primary fact in dispute at the trial" as "whether or not the island was a known feeding area for geese." Id. at p. 4. The Magistrate ultimately concluded that "a reasonable person would have been placed on notice that alfalfa grown on West Lake Island in the Snake River would attract and be consumed by migratory birds. See Memorandum Decision filed October 19, 1988, at p. 4. But in reaching this conclusion the Magistrate also found that the defendant had used Furadan on his alfalfa fields in the past and "never experienced a problem with birds." Id. at p. 3. The Magistrate found that other farmers in the area could not recall "any prior incidences where large numbers of geese had been killed following a pesticide application." See p. 3. These pesticides had been used "by the farming community in the Weiser area for a number of years without major incident." Id. at p. 14.

The defendant Rollins did not apply the pesticide in a reckless manner. Id. at p. 14. Indeed, Rollins and a farm helper "inspected the field during the spraying and there was no sign of geese feeding on the alfalfa." Id. at p. 4. Rollins applied the chemicals "in the recommended quantities at the appropriate time." Id. at p. 14. Once the pesticides were applied, "there is no effective way to keep them the geese out of their the farmers' fields...." Id. at p. 4.

Neither party has challenged the Magistrate's factual findings as being clearly erroneous. Given those facts, can the MBTA be constitutionally applied to defendant Rollins? That is a question of law which must be reviewed de novo, and the Court will now turn its attention to that review.

The MBTA provides in pertinent part as follows:

§ 703. Taking, killing, or possessing migratory birds unlawful.

Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill ... any migratory bird....

As the Magistrate and other courts have accurately pointed out, the MBTA is a strict liability statute without a scienter requirement. Id. at pp. 8-14. See also United States v. FMC Corp., 572 F.2d 902 (2nd Cir.1978); United States v. Corbin Farm Service, 444 F.Supp. 510 (D.Cal. 1978); United States v. St. Pierre, 578 F.Supp. 1424 (W.D.S.D.1983). Thus, a homeowner could be pursued under the MBTA if a flock of geese crashed into his plate-glass window and were killed. An airplane pilot could be prosecuted if geese were sucked into his jet engines. A farmer like Rollins is exposed to sanctions because he tended his crops in the same manner as other area farmers. These examples make one queasy about the reach of strict liability criminal statutes. Certainly the lack of any intent requirement does not instantly doom the statute: Many strict liability statutes exist. But the lack of scienter does make a statute prone to vagueness, and a vague criminal statute will not withstand constitutional scrutiny.

Under our system of government, "which is designed to foster individual liberty and restrict the arbitrary exertion of governmental authority," United States v. Stenberg, 803 F.2d 422, 435 (9th Cir.1986), a criminal statute must define the offense with "sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed. 2d 903 (1983). "No individual may be forced to speculate at peril of indictment whether his conduct is prohibited." Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Any statute which does not give fair notice as to what constitutes illegal conduct so that an individual may conform his conduct to the law violates the first essential of due process of law. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).¹

The Supreme Court has long recognized that "the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea." See Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979). Such statutes could become "little more than a trap for those who act in good faith." Id. at p. 395, 99 S.Ct. at p. 685 (quoting from United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383 (1942)). That is precisely what has happened in this case: The MBTA has trapped a farmer who acted in...